Justice Alito Hoists an Anti-Free Speech Lawyer By His Own Petard

Caricature by DonkeyHotey flic.kr/p/Ct4G4K https://creativecommons.org/licenses/by/2.0/

Caricature by DonkeyHotey flic.kr/p/Ct4G4K https://creativecommons.org/licenses/by/2.0/

Yesterday, an interesting case was argued before the Supreme Court. It begins in Minnesota and it involves free speech. More specifically, this being Minnesota, it addresses the degree to which the state can go in its struggle to ensure that absolutely no one is ever offended about anything.


In 2010, Andrew Cilek tried to vote. The problem was that his attire, a Gadsden flag T-shirt and a button that said “Please ID me” ran afoul of the election judge’s sense of decorum…and Minnesota law which forbids any “political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” At first he was told he couldn’t vote unless he removed the shirt and button. Nevertheless, he persisted. And on his third try he was allowed to but he was photographed by voting staff to record the fact for potential prosecution. Cilek sued.

A federal district judge ruled against him as the did the Eighth Circuit. Their reasoning was that Burson v. Freeman, which upheld a prohibition on electioneering within 100-ft of a polling place, applied to Cileks’ attire. Cilek appealed on the grounds that his case was very different from Burson because there was no “Tea Party” candidate on the ballot and Minnesota does not have a Voter ID law and one was not on the ballot. In short, Cilek’s attire caused wadded panties but it was actually meaningless in terms of influencing anyone in how to vote. Except those folks who were prostrated by the vapors.


The Supreme Court agreed to take the case.

The head count looks like Cilek will prevail. Thomas, Alito, Gorsuch, and Kagan were very skeptical of Minnesota’s position. Kennedy and Roberts both sounded weaselly but Roberts, in particular, sounded more sympathetic to Cilek’s argument. Heaven only knows what Kennedy will do but he, too, seem to end up skeptical of the state’s position.

To me, this exchange was the crux of the argument. It is between Justice Samuel Alito and the attorney for Minnesota.

And then Alito swoops in for the kill:

Well done.



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